District Court New South Wales Medium Neutral Citation: R v THEPSOURINTHONE [2011] NSWDC 93 Hearing dates: 24 March 2011 Decision date: 24 March 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Convicted and ordered to perform 200 hours of community service Catchwords: CRIMINAL LAW - Sentence - Aiding, abetting counsel or procuring the importation of prohibited tier 1 goods - Pseudoephedrine Legislation Cited: Commonwealth Crimes Act Category: Sentence Parties: The Crown Viensamay Thepsourinthone Representation: Director of Public Prosecutions (Cth) Australian Criminal Law Specialists - Offender File Number(s): 2010/326427 SENTENCE 1HIS HONOUR: The offender Viensamay Thepsourinthone appears for sentence today after having pleaded guilty to an offence of aiding, abetting counselling or procuring the importation of prohibited tier 1 goods. The goods in question were pseudoephedrine. 2On 2 April 2010 Customs officers working at a mail facility intercepted a package. It was not addressed to the offender, but was addressed to the address where his cousin lived. It had been sent from China. When Customs officers opened the package they found two picture frames, each displaying a photograph. This was consistent with the Customs declaration on the outside of the package. Further examination revealed that the picture frame was moulded out of a granular substance. A presumptive test on those granules revealed a positive result for pseudoephedrine. The picture frame itself was made out of pseudoephedrine (and other substances, of course) so that the drug bound together and held the shape of the picture frame. In fact after the picture frames were analysed it was found that although they weighed slightly more than 1.2 kilos a substantial proportion of that, 347 grams in fact, was pure pseudoephedrine. 3The Customs officers reconstructed the package and conducted a controlled delivery. The package was taken to the address of the offender's cousin. She was spoken to by police and then she advised them that she had received the package at the request of her cousin the offender. The offender was then approached and he told police that a friend of his had asked him to collect or receive the package, telling him that there would be medicine for colds in the package. The offender was paid $1,500 for his participation. 4He gave evidence before me today, accepting that he realised that he was being asked to do something illegal, and that there was a risk, therefore, that the package contained something illegal. Of course he did not try to suggest that it was justifiable for him to take that risk in the circumstances which presented themselves to him. He had a situation where someone had asked him to receive a package, something which was suspicious in itself. Then he, in turn asked his cousin to receive the package for which he was to be paid a substantial amount of money. It was his responsibility to receive the package from his cousin and pass it on to Mr Limson, where, no doubt, the pseudoephedrine would be recovered and it would be used in the manufacture of other illegal drugs. 5The various law enforcement authorities seek to combat the scourge of illegal drug use in many ways and one of these is to make it very hard for drug manufacturers to obtain their raw ingredients. It used to be that pseudoephedrine was obtained through cold and flu tablets sold at pharmacies in Australia, but now that the makeup of cold and flu tablets has changed and there are substantial restrictions on the supply to consumers of drugs containing pseudoephedrine, illegal drug manufacturers have turned their attention to other ways of obtaining their raw ingredients. And as this case illustrates attention has now been turned to importing the raw materials from overseas. 6It is thus a very serious offence. The offender realised that what he was doing was illegal. He may not have realised precisely what it was that was being imported, but he took the risk in acting as he did that he would participate in a serious offence like this, and, indeed, he is fortunate that he is not facing a more serious punishment as would have been the case if the package contained a drug such as heroin. 7It is somewhat surprising to find the offender in this position. He is fifty-four years of age and has no criminal history at all. He is a man, the evidence would suggest, of otherwise good character. He came to Australia from Laos in 1986 as a refugee and since that time he has worked and married and raised a family. He supports his family and he is no doubt concerned about the effect that this matter will have upon them. It could not be suggested that the hardship that they would experience if the offender were to be sent to gaol would be exceptional and so the consequences for them of any sentence I must impose upon the offender have been put to one side. 8For a while it seemed that the offender was having difficulty accepting the seriousness of what he had done. Indeed, from answers he gave in the witness box today it appeared that he was suggesting that he was, in fact, not guilty of this offence. But after an adjournment so that Mr Singh, who appears for him today, could get further instructions and on the recall of the offender to the witness box he did admit his guilt. However, the circumstances in which that admission was made would have meant that his claim to have been remorseful is somewhat qualified. I have my doubts as to whether he really does accept just how wrong his conduct was. 9However, there is one matter which attests rather strongly to his remorse, his attitude to this offence, and his attitude towards illegal conduct generally - and that is that the offender has promised to give assistance against the two other people whom the authorities have been able to identify as being involved in this matter. 10One of them, Mr Limson, is due to be tried in this Court on 30 May. The other, Ms Yao faces committal proceedings on 12 July. The offender has undertaken to give evidence against both Mr Limson and Ms Yao and to cooperate with the authorities in that regard. I note that as well as this promise of future assistance the offender has been of assistance in the past. When he was spoken to by police on the first occasion they approached him he told them what he knew about the matter, told them where they could find Mr Limson and, indeed, under the supervision of the police, he telephoned Mr Limson and asked him to attend. Mr Limson did so. 11An assessment of his information has been made by a senior investigator from Customs and that assessment concludes that the offender has been full and frank and in fact has provided all the information which he can provide to the authorities. Not only has the offender caused Mr Limson to arrive at the premises so he could be arrested, but he also provided information leading to the identification of where Ms Yao was and her arrest as well. 12The maximum penalty for this offence is imprisonment for five years. The Crown suggests that whilst a custodial sentence is required it is not necessary that that be a full-time custodial sentence. On the other hand Mr Singh who appears for the offender suggests that imprisonment is not required and the matter could be dealt with by way of a community service order. In that regard he relies on a somewhat similar case where an offender who was involved in the importation of pseudoephedrine sealed in picture frames was sentenced in the Victorian County Court. That offender was much younger and did not provide assistance, at least none that was mentioned in the sentence imposed upon the offender in July last year. 13It is trite to say that imprisonment is a sentence of last resort and we have the unusual circumstance here that a sentence of imprisonment, which is suspended as the Crown concedes would be appropriate, would lead to the offender in fact being punished to a lesser extent than if a sentence of community service was imposed upon him. Of course I must follow the authorities which tell me that a suspended sentence of imprisonment is real punishment and that it is, as the authorities emphasise, a custodial sentence, just one which is suspended, and in the event that the offender does not commit any further offences never activated. 14The reason that I will not impose a suspended sentence or a sentence of imprisonment of any kind upon the offender is not because of the circumstance that I have just mentioned but because in the light of the objective gravity of the offender's conduct and his subjective features I do not consider that imprisonment of any kind is required. 15The offender's involvement was limited indeed. His moral culpability was such that he was reckless as to what the package contained rather than him knowing what it contained. He has a substantial bank of good character on which he is entitled to rely and he has demonstrated a willingness to assist the authorities in many ways: past assistance, future assistance and an early plea of guilty. In those circumstances I do not propose to impose a sentence of imprisonment. I will, however, consistent with s 21E of the Commonwealth Crimes Act, say that in the absence of the undertaking to give assistance in the future I would have imposed a custodial sentence of two years, albeit I would have suspended that under s 20(1)(B) of the Commonwealth Crimes Act . 16The offender is therefore sentenced as follows. He is convicted. He is ordered to perform 200 hours community service. He is to attend the Liverpool office of the Probation and Parole Service within seven days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2011